California Supreme Court Justice Marvin Baxter to retire

By Howard Mintz hmintz@mercurynews.com

Posted:
06/19/2014 05:48:35 AM PDT

Updated:
06/19/2014 05:48:43 AM PDT

California Supreme Court Justice Marvin Baxter, a staunch conservative influence on the law for more than two decades, will retire at the end of the year, giving Gov. Jerry Brown an opportunity to dramatically reshape the state's high court.

The 74-year-old Baxter announced Wednesday that he will not seek re-election to a 12-year term on the November ballot, making him the second justice to depart the Supreme Court this year. Baxter, an appointee of former Republican Gov. George Deukmejian, has spent 24 years as a justice and is arguably the most conservative justice remaining on the seven-member court.

"It just seemed to be the right time to do this," Baxter said in an interview with this newspaper. "It really came down to a very personal decision that I made."

California Supreme Court Justice Marvin Baxter. The California Supreme Court dismissed an appeal of the case after initially agreeing to hear it. The court tossed the case not because of its legal merits but because of the financial fortune of four of the seven justices who controlled stock in the oil companies who provided the solvents such as acetone at issue. (AP Photo,File)
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Baxter's retirement paves the way for perhaps the most profound shift in the state's high court since it turned conservative in the late 1980s. Justice Joyce Kennard retired in April, and Brown has been vetting candidates for that seat. Coupled with the previous appointment of Justice Goodwin Liu, Brown would have three of his picks on the court once he replaces Baxter if, as expected, the governor is re-elected in November.

By announcing his decision now, Baxter, a lifelong Republican, has given the Democratic governor an opportunity to ensure that a successor is on the November ballot if a new justice is nominated by Sept. 15. Brown's appointment would then go before the voters as an incumbent for election to a 12-year term.

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Evan Westrup, a spokesman for the governor, said the administration is "moving expeditiously to fill these vacancies."

Brown is already under pressure to name a Latino or African-American to the state Supreme Court, which is currently without such representation. There have been a host of possibilities mentioned for Kennard's seat, including San Jose appeals court Justice Miguel Marquez, Stanford University law professor Mariano-Florentino Cuellar, UCLA law school dean Rachel Moran and San Francisco appeals court Justice Martin Jenkins.

Before joining the state Supreme Court, Baxter was an appeals court justice in Fresno and previously served as Deukmejian's appointments secretary, including for the judiciary. Deukmejian also was a lawyer and prosecutor in Fresno.

Baxter called his Supreme Court service "a privilege," and said he planned to spend his retirement with family, traveling and on hobbies. Asked where his first trip might be, Baxter joked that he'd have to consult with his wife, Jane, a retired schoolteacher, before that decision is made.

Chief Justice Tani Cantil-Sakauye said she would miss Baxter's "sage advice and counsel."

While on the court, Baxter, soft-spoken and known for being courteous in his grilling of lawyers during arguments, seldom broke from the court's entrenched conservative wing, regularly upholding death sentences and generally siding with prosecutors in criminal cases.

Baxter also was part of the dissent in the 4-3 decision in 2008 that struck down California's laws barring same-sex marriage. Voters later restored the gay marriage ban with Proposition 8, which the U.S. Supreme Court invalidated last year.

Baxter has written many notable opinions, including the so-called "Friends" sitcom case in 2006. In that ruling, he determined that sexually vulgar language is often a central part of the creative process, tossing a sexual harassment case brought by a former assistant on the popular TV show.

Last year, Baxter wrote the unanimous ruling in a case that upheld the right of local governments to ban medical marijuana dispensaries. He also wrote the majority opinion in a 4-3 decision in 2006 finding that people infected with the virus that causes AIDS are obligated to inform partners about possible exposure. And in 1995, Baxter wrote a ruling upholding a Santa Ana no-camping ordinance that targeted the homeless.

Baxter declined to characterize his tenure on the state Supreme Court, or single out any particular cases of note.

"I haven't really kept a so-called hit parade of cases," Baxter said. "I've never thought in those terms. I'll leave that to others to assess."

Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz